Asian Development Bank (ADB) experts have suggested that Pakistan should consider creating legislation that specifically deals with the enforcement of foreign freezing and confiscation orders, including enforcement through direct registration.
A special law that expressly addresses these matters could add certainty and transparency to the process, they say. The legislation could also codify Pakistan's policy for repatriating proceeds of corruption.
An ADB publication on "Frameworks and Practices in 27 Asian and Pacific Jurisdictions" reveals that corruption in the Asia-Pacific region, like many other crimes, has taken on an international dimension in recent years. It is now common for corrupt public officials to hide or launder bribes or embezzled funds in foreign jurisdictions, or for them to seek safe haven in a foreign country. Bribers may keep secret slush funds in bank accounts abroad, or may launder the proceeds of their corruption internationally.
The bribery of foreign public officials has also become a widespread phenomenon in international business transactions, ADB says, including trade and investment, as well as humanitarian aid. Consequently, Asia-Pacific countries increasingly recognise the need for international co-operation to fight and repress corruption more effectively.
Extradition and mutual legal assistance (MLA) in criminal matters are two essential forms of such international co-operation, the report stresses. Extradition is the surrender by one state, at the request of another, of a person who is accused of or has been sentenced for a crime committed within the jurisdiction of the requesting state. MLA is a formal process to obtain and provide assistance in gathering evidence for use in criminal cases, to transfer criminal proceedings to another state or execute foreign criminal sentences. In some instances, MLA can also be used to recover proceeds of corruption. Both extradition and MLA are indispensable means of international co-operation in criminal law enforcement.
ADB experts say that the purpose of this report is to provide an overview of the legal and institutional framework for extradition and MLA in corruption cases in 27 of the 28 jurisdictions that have endorsed the Anti-Corruption Action Plan for Asia-Pacific of the ADB/OECD Anti-Corruption Initiative for Asia-Pacific. The countries in the report are Australia, Bangladesh, Cambodia, China, the Cook Islands, the Fiji Islands, Hong Kong SAR, India, Indonesia, Japan, Kazakhstan, Korea, the Kyrgyz Republic, and Macao SAR. Also included are Malaysia, Mongolia, Nepal, Pakistan, Palau, Papua New Guinea, the Philippines, Samoa, Singapore, Sri Lanka, Thailand, Vanuatu, and Vietnam. This report does not cover Bhutan, which became the 28th member of the Initiative in September 2007 after the thematic review began.
Commenting over the "Legal Framework for Extradition and MLA" ADB experts said that ratifying the UNTOC, as well as concluding new bilateral extradition and MLA treaties, would likely enhance Pakistan's ability to seek and provide international co-operation in corruption cases. Pakistan only has one MLA treaty, while some of its extradition treaties were adopted from the United Kingdom and are thus quite old. Legislative reform could also improve Pakistan's ability to provide international co-operation. Pakistan could amend or replace the Extradition Act to provide more modern features, such as provisional arrest and consent extradition. Abandoning the list approach to defining extradition offences could also help ensure that all corruption related offences including money laundering and illicit enrichment are covered. Pakistan could also consider allowing MLA to be provided in the absence of a treaty, the ADB experts feel.
Furthermore, ADB experts said that Pakistan could consider improving its legal framework for MLA by enacting a law that deals specifically with MLA. They say that the CrPC is designed for domestic and not foreign investigations and thus it does not expressly address important matters. These matters include dual criminality, offences eligible for assistance, grounds for denying assistance, channel of communication with foreign states, designation of a central authority to handle requests, taking evidence by video conference and production orders. Special laws that expressly addresses these matters could add certainty add transparency to the MLA process.
Commenting on the "Legal Preconditions for Extradition and MLA", ADB experts suggest that Pakistan should consider enhancing extradition by reviewing the evidentiary aspects of the process. In particular, Pakistan applies the prima facie case evidentiary test in cases of extradition. Civil law jurisdictions seeking extradition from other common law jurisdictions have had difficulties in complying with this test. Pakistan could therefore consider following the example of some common law countries like Australia and the UK in extraditing to non-Commonwealth countries, that require less or even no evidence to extradition, while bearing in mind the need to protect the rights of the person sought. In addition, the Extradition Act requires the extradition judge receive evidence on behalf of the person sought. Pakistan may wish to consider whether this would allow the person sought to tender evidence regarding whether he or she committed the offence underlying the extradition. If so, the extradition hearing could potentially be turned into a trial, thereby delaying the process, they added.
To further enhance international co-operation, ADB experts said that Pakistan could consider eliminating the dual criminality requirement for MLA or reducing it to a discretionary requirement for requests made outside the UNCAC. Alternatively, Pakistan could consider requiring dual criminality only for more coercive measures such as extradition and search and seizure, though not for less intrusive ones, such as requests for production orders and service of documents. Such an approach would be consistent with the standards embodied in international instruments such as Article 46(7) of the UNCAC.
As for grounds to deny co-operation, Pakistan refuses extradition and MLA if the target of a case is being investigated or prosecuted in Pakistan for the same offence. Pakistan could consider reducing this to a discretionary ground for denying co-operation, giving more flexibility to the decision of whether the prosecution should proceed in Pakistan or the requesting state. Such an approach would also be consistent with Pakistan's policy of rendering extradition and MLA when the underlying offence is committed wholly or partly in Pakistan.
Enacting a legislative provision to prohibit MLA from being denied because of bank secrecy would also bring Pakistan in line with recent international standards such as Article 9(3) of the OECD Convention, Article 46(8) of the UNCAC, and Article 3(5) of the Southeast Asian MLAT. ADB experts said that Pakistan has a de facto central authority for MLA in corruption cases, namely the NAB. The NAB will execute incoming requests unless they involve extradition or repatriation of assets, which must be executed by the MoI. This division of responsibilities between the NAB and the MoI has led to some confusion, especially in foreign states sending extradition requests to the NAB. Pakistan could therefore considering simplifying this process by creating a single central authority for all extradition and MLA cases, and by allowing the central authority to communicate directly with a foreign state outside diplomatic channels.
Pakistan could also consider creating a Web page in English that is dedicated to international co-operation and includes information such as the relevant legislation and contact information for the central authority.
Finally, the report says that Pakistan could also consider establishing procedures for dealing with urgent requests. It could consider providing for provisional arrest under the Extradition Act, and allowing such requests to be made outside the diplomatic channel. It could also consider accepting urgent requests for MLA that are made via Interpol, email, facsimile, or orally with subsequent written confirmation, they added.